Citation Nr: 21024808 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-00 413 DATE: April 26, 2021 ORDER Entitlement to nonservice-connected pension benefits from June 2, 2009, to August 18, 2017, is granted. REMANDED Entitlement to a compensable evaluation for service-connected bilateral hearing loss disability is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT The Veteran was shown to be permanently and totally disabled from nonservice-connected disabilities between June 2, 2009, and April 28, 2015; from April 29, 2015, to August 18, 2017, the Veteran was 65 years or older. CONCLUSION OF LAW The eligibility criteria for nonservice-connected pension benefits between June 2, 2009, and August 18, 2017, have been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. § 3.3 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1967 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 decision. In November 2017, the Board remanded the claims for further development. The Board notes that in September 2017 the RO awarded nonservice-connected pension benefits effective August 18, 2017. The benefits were payable as of September 1, 2017. Thus, review of the claim for nonservice-connected pension benefits is limited to the period prior to August 18, 2017. The law authorizes the payment of nonservice-connected disability pension to a Veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. §§ 1502, 1521. The Veteran is permanently and totally disabled, provided that the condition was not the result of the Veteran’s willful misconduct, or the Veteran is a patient in a nursing home receiving skilled nursing, or the Veteran is receiving Social Security disability benefits; and the Veteran meets the countable family income and net worth limitations set by Congress. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3(a)(3). If a Veteran meets these qualifications, the improved pension is calculated to be an amount equal to the difference between the Veteran’s countable family income and the annual pension limit set by Congress. 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (b). On June 2, 2009, the Veteran filed a claim for nonservice-connected pension. In this case, the Veteran meets the initial threshold requirement for pension in that he served for over 90 days during a period of war. The Veteran was not a patient in a nursing home for long-term care because of disability; however, the Veteran was adjudged disabled by the Social Security Administration (SSA) as of September 14, 2009, for a nonservice-connected back disorder. See SSA Disability Determination; see also 38 C.F.R. § 3.2(a)(3)(vi)(B)(1), (2). While the Board is aware the Veteran filed his claim in June 2009, three months prior to the date he was adjudged disabled by SSA, the Board finds that the evidence is in equipoise that his nonservice-connected disabilities, particularly his back disability, rendered him unemployable on the date of claim. 38 C.F.R. § 3.102. Notably, on examination in March 2010, the examiner indicated that the Veteran had not been employed in the past year as a result of his low back condition and pain. In addition, the examiner noted the Veteran’s back disability limited his ability to stand or walk for prolonged periods and his essential tremors resulted in functional impairment with fine motor movements such as writing. In March 2013, the Veteran presented testimony before the RO and indicated that he last worked in 2008 and that his disabilities, to include his back, prevented him from working. Having considered the medical and lay evidence of record, the Board has afforded the Veteran all reasonable doubt and finds that he was permanently and totally disabled from nonservice-connected disabilities on June 2, 2009, the date of claim. As of April 29, 2015, he was 65 years or older. Therefore, entitlement to nonservice-connected pension benefits is established between June 2, 2009, and August 18, 2017. REASONS FOR REMAND Entitlement to a compensable evaluation for service-connected bilateral hearing loss disability The last VA examination of the Veteran’s bilateral hearing loss disability was in September 2013, almost eight years ago. Thus, it is not adequate to assess the current level severity of the disability on appeal and a new examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  Entitlement to service connection for psychiatric disorder and residuals of TBI The Veteran’s 1968 in service injury whereby he was hit in the head with a board is not in dispute. The Veteran has been variously diagnosed with and treated for complaints of anxiety, depression, anger, insomnia, and mood disorders. The August 2019 VA psychiatric examiner noted that the Veteran’s treatment records documented the potential existence of anxiety, insomnia, and depression. The examiner further documented the presence of such symptoms as anger, suspiciousness, impaired judgment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. The Veteran was afforded an initial TBI evaluation in August 2019 to determine whether the Veteran had any residuals of a TBI; however, the examiner did not address whether the complaints, symptoms, treatment, and diagnoses listed above were manifestations of a mental disorder or cognitive impairment and subjective symptoms as a result of the in-service injury. Consequently, a remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran currently has residuals of a TBI. If that examiner deems it necessary, schedule the Veteran for an appropriate VA examination to assist in determining whether residuals of a TBI are present. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. After reviewing the August 2019 psychiatric and TBI examination reports, the examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s complaints of and/or treatment for anxiety, insomnia, depression, anger. suspiciousness, impaired judgment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances are manifestations of a mental disorder and/or cognitive impairment and subjective symptoms resulting from a TBI. The examiner must provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. If upon completion of the above action, the issues remain denied the matters must be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.